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Deadline approaches for Denver DA on whether to seek death penalty

Outside the Fero's Bar and Grill on Colorado Blvd., where Denver police and fire officials investigate the scene of an arson-homicide on October 17, 2012. (RJ Sangosti, The Denver Post)

The last time a Denver jury sentenced someone to death was in 1986, when Ronald Reagan was in the White House and Federico Peña was in city hall.

By Friday, Denver District Attorney Mitch Morrissey must decide whether to ask a jury to consider the death penalty for a 23-year-old man accused of stabbing five people to death at a Denver bar in October. A decision to proceed would be the first time since 2001 that Denver prosecutors even have sought the death penalty.

Death is a rarely sought punishment in Colorado, for a variety of reasons, including finances. One case alone can cost a county millions of dollars and can continue for decades.

Attorneys say the case against Dexter Lewis includes all of the aggravating circumstances needed to pursue capital punishment. But they also agree with experts who warn that prosecutors would face long odds in a city that has been highly reluctant to impose a death sentence.

Still, prosecutors Tuesday laid the groundwork for a potential capital punishment case against Lewis by offering plea agreements to his two co-defendants, brothers Lynell and Joseph Hill. Joseph Hill pleaded guilty to five counts of first-degree murder, and his younger brother, Lynell, pleaded guilty to three counts, including second-degree murder.

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According to the plea agreements, both men agreed to testify at any trial or hearing in the case against Lewis.

Lewis faces 16 counts in the Oct. 17 attack at Fero's Bar and Grill, including first-degree murder, felony murder, robbery and arson. He is scheduled to appear in court Thursday afternoon.

"When five people are murdered, you have to think that the death penalty is a possible decision," said former Denver chief deputy district attorney Craig Silverman. "We've already determined that if an adult commits premeditated murder, then it's life in prison. What if you do that several times over? Is there no consequence?"

Joseph Hill, 27, pleaded guilty and faces a life sentence without the possibility of parole.

Since taking office in 2005, Morrissey has considered the death penalty in about a dozen cases, said Lynn Kimbrough, spokeswoman for the Denver District Attorney's office. Those decisions could have involved an initial meeting, or a full staffing to consider factors such as the charges, whether a jury was likely to convict a defendant and input from victims' families.

Prosecutors were forced to pursue a lesser charge of second-degree murder after Gomez-Garcia fled to Mexico. Mexico refused to extradite him back to the United States if prosecutors pursued the death penalty.

Lynell Hill, 25, pleaded guilty and will receive a 70-year sentence.

Silverman said because the case against Lewis involves multiple victims, alleged heinous and cruel acts, and at least one charge of first-degree murder, it falls well within the arena of capital punishment.

"There are many aggravating factors that apply in this case," Silverman said. "It still doesn't mean it is easy to pull the trigger on a death-penalty decision. You want to have a slam-dunk case if you are seeking capital punishment."

Colorado has executed only one person, Gary Davis, since capital punishment was reinstated in 1979. From January 1980 to January 1999, prosecutors sought the death penalty 110 times, said Michael Radelet, a sociology professor at the University of Colorado who has researched the death penalty for decades. A death sentence was imposed 13 times.

"The data reveals that when it comes to death penalty cases in Colorado, many are called but few are chosen," Radelet said.

Since 1972, Denver prosecutors have sought the death penalty in 20 cases, Radelet said.

Of those 20, only one resulted in a death sentence. In 1986, Frank Rodriguez was sentenced to death for the rape and murder of Lorraine Martelli. Silverman and former chief deputy district attorney Mike Little, who died last month, prosecuted the case.

Almost 16 years after he was sentenced to death, Rodriguez died on death row from hepatitis C complications.

Prosecutors last sought the death penalty in the case of Abraham Hagos. Hagos was convicted in 2002 of planning the death of James Roberts, who was planning to testify against him in a drug case. Hagos was ultimately given a sentence of life in prison after the U.S. Supreme Court ruled that only juries — not judges — can sentence criminals to death.

Since 2000, prosecutors in Colorado, including Denver, have sought the death penalty 16 times. Six of those cases were in the 18th Judicial District, including the case against Aurora theater shooting suspect James Holmes, Radelet said.

Three men sit on death row in Colorado, including Nathan Dunlap, who was convicted of killing four people in an Aurora Chuck E. Cheese's restaurant in 1993. This past May, just months before Dunlap was scheduled to be executed, Gov. John Hickenlooper granted an extraordinary "temporary reprieve" that all but ensures Dunlap will not be executed while he is governor.

Hickenlooper's decision ignited a fierce debate about the death penalty, which the governor said is "imperfect and inherently inequitable" in Colorado.

If Morrissey seeks the death penalty against Lewis, jurors may be forced to consider the fairness of the plea agreement and why only one of the three defendants faces death, Silverman said.

"The question law enforcement no doubt wants to answer is who was the most culpable, most blameworthy and the most responsible for this atrocity. And so will the jury," Silverman said.

According to a search warrant, all three men ordered the victims on the floor, set the bar on fire and split $170 in cash.

But, if Morrissey seeks death, potential jurors may also consider the cost of sentencing Lewis to death, Radelet said.

Weld County District Attorney Ken Buck said he has considered the death penalty in at least a dozen cases, but he never sought the sentence. In addition to weighing the elements of the case, Buck said he is also forced to weigh the costs.

In order to pursue a death-penalty case, Buck would have to request additional funds from the county commissioners, he said.

The average cost to pursue a non-death penalty case in Weld County is about $90,000. A capital-punishment case could cost 10 times that, Buck said.

"It is an incredibly expensive process for a smaller jurisdiction," Buck said.

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